19941108 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA .AT DAR ES SALAAM _-----·•-·--•-·--·"'"•-r,..,~•-••·'"...,. CIVIL APPEAL NO. 13 OF_1993

BETWEEN MRS • MGEiH KIHONDO . . . . • • • • APPELLANT AND '· NANCY MTAWALI . . . . . . . . . • RESPONDENT (Appeal from the decision of the Hi~h Court of Tanzania at Dar es Salaam) (Bahat~, J.) ,,-o \ ' dated the 31st day of March, 1992 in Civil Case No .•.~·-44 -----....----·-·--·-,....,- .... ·- of 1990 -·-_,..... JUDGEMENT OF THE COURT -- ---· -----~-------:1-~-...--=-- This appeal arises from the decision of the High Court (Bahati, J.) dismissing the appellant's claim for I:,.- ·, I a declaration over a building plot. The appellant and the respondent have rival claims over the building plot No. 196 Block D Mbezi High ri~nsity Area. Each party has al: offer of a right of occupancy from the Land Office. That of the respondent is dated 1980 while that of the appellant is dated 1987. 'rhe trial judge found no credible evidence to support t~e appellont's claim that she had paid ·1 for an earlier offer dated 1983 which was allegedly stolen. - The 1987 offer was issued to the appellant at a time when the respondent had already made payment of the necessary fees in respect of her offer but had not yet sent notifica- tion of such payment to the Land Officer. The narrow question before the Court, therefore, was which of the twp offers was valid? Put differently the question.was whether the respondent's offer had lapsed for want of notification of payment thus rendering the plot vacant

so that by 1987 it could validQy be re-allocated to the appellant. The trial judge answered_that question in the negative and dismissed the claim~ He further disallowed a cilaim for compensation in' respect of building materials allegedly brought on the site by the appellant, henc.e this appeal. Before us the appellant was represented by Mr. Y. Mchora learned advocate and the respondent was represented by Mr~ M. Ismail also learned advocate. Mr. Mchora :filed a memorandum of appeal with four grounds raising substantially the same issue which was before the High Court. In his oral submissions Mr. Mchora strongly emphasized that the offer to the respondent dated 22. 1 0 .80 was oper?, tb ··acceptance within 30 days but there was no acceptance. The learned Counsel agreed with the finding of the trial j·uctge that the respondent made the necessary payment within.the prescribed period in 1980 but maintained that this did nqt amount to acceptance as there was no notification of such payment to the Land Office. Thus according to him on the expiration of 30 days from the date of the offer (22.10.80) the offer lapsed rendering the plot vacant which was validly re- allocated to the appellant in 1987. In dealing with this issue in the course of his judgement, the learned judge held that the offer was accepted by the payment of the prescribed fees within 30 days. This is what he

said: I .... /3 J "It is my opinion that what is · important and necessary for the offer to hold good is the payment of the necessary fees within the specified period. Notification of such payment to the Land Office though required, cannot vitiate (sic) or make the offer lapse as long as payment has been made in time ; 11 Here the judge is saying that non-notification does not ' vitiate the offer provided p~yment was made within the stipulated time. This view was justified on the evidence. Paragraph (6) of the copy of the offer which was sent to the respondent (Ex..~. D1) reads: 11 6. Unless this offer is accepted and all fees paid within thirty days·-. from the date. of this letter ·•.·•. the offer shall lapse. After this period the plot will be disposed of as the Committee sees fit without any further reference to you.a On a true construction of this paragraph we think that the period of thirty days is with reference to payment of the fees. It could not reasonably be constr~ed to be with reference to notification of payment. For one thing, supposing payment·was made on the 30th day of the letter of offer. It is reasonable to think that there should be allowed time during which to send the ., notification of the payment to the Land Office. It cannot reasonably be assumed that the payer is expected to send the notificatlon, say by post, to reach the Land Office on the very same

day. " ••• / 4 Yet there'was oral evidence too to support the decision of the trial judg~. PW.3 Valentine Sauze, a District Land Officer called by .the' ·app'ellant herself clearly statedrthat' 11 Sending of receipts not one of the .: 1· conditions in para 6 of. the offer 11 ·• DW .4 Tatu Pelemba another Land Officer from the City Council in effect testified that the. responde~t had accepted the offer all alon.g, and that at no time was that offer revoked. She added that if they had known that the respondent had accep_ted the offer_ (by. payin~ the fees) they would not have issued ·another offer for the same plot. She concluded by saying that tn_e respondent was the rightful owner of ... .. . the disputed plot. We think that the decision of the trial judge was amply justified on the evidence and we can find ri6 reason to interfere~ Equally justi·fi-ed was his finding on the issue of ·qotnpensation foi:' buiidirig materials allegedly brought and deposited on the disputed plot by the appellant. The respondent denied seeing any such building.materials. The triai judge d~cided to disbelieve the appellant artd her witness on this issue. In so doing he found that the appellant had given inconsistent accounts and when aslced to expiaih this she kept quiet. Again he found that the claim had been raised only belatedly which suggests that it was more of an afterthought. As regards PW,2

he tended to be hostile to the respondent. For example, he denied seeing any motor vehicle brought to the site by the respondent until he was forced under cross-examination to admit that he saw a lorry deliver sand and blocks on the site at the instance of the respondent. . ... / ') Thus it was entirely a question of who to believe and, as already noted, the trial judge chose to disbelieve the l t appellant and her witness, giving his reasons for so doing. As an appellate Court we shall not readily interfere with the finding of the trial Court on the issue of credibility. The trial judge who had the advantage of hearing, seeing and watching the demeanour of witnesses in the witness box was better placed to decide on that issue. The learned judge was entitled to come to the conclusion he did having regard to the reasons which he gave for doing so, and there is no good reason to interfere. The learned judge also took the view that even assuming that the appellant did, in fact, deliver building materials on the site, there is no basis for concluding that such materials •must have been used by the respondent. For, the.re was no watchman on the site to guard the materials, and so :persons other than the respondent could have used them. Again we can find no fault with that reasoning, and the claim for compensation was also rightly rejected. In the result ~e find this appeal to be devoid of merit. Accordingly we dismiss it with costs. DATED at DAR ES SALAAM this 8th day of November, 1994. , R.H. KISANQA / /: . (, ,, I

JUSTICE OF APPEAL I .~ , I • I --------·---- I, i L. M. MFALILA \ ... \ JUSTICE OF APPEAL \ \ ·-----...------- D. Z. LUBUVA

JUSTICE OF APPEAL - _.,. p • ·--·-·--- I certify that this is a true copy of the original. (M. S.